Category Archives: Mo Work Comp

On 10/24/2018, Marshall Edelman, Attorney, argued in front of the Missouri Supreme Court regarding novel issues in Missouri Workers’ Compensation. He appeared with his father, Ronald D. Edelman, Attorney. This is the first challenge to the interpretation and constitutionality of the 2014 amendment to the Missouri work comp system involving enhanced permanent partial disabilities against the Second Injury Fund.

Our office is challenging the law because it is the right thing to do and, if successful, will benefit all Missourians. The Fund has taken the position that injured workers are not entitled to enhanced permanent partial disability benefits from the Fund for primary injuries after 1/1/2014. We disagree. This sends a signal to employers that they have more incentive to discriminate against those persons with preexisting disabilities who can actually work than those that can’t. This is not a rational basis.

The decision in this case, Cosby v. Treasurer of Missouri, SC97317, will affect nearly every employer and employee in Missouri. This case was recently featured in the news. Click here to read the article. Marshall is honored to be featured in Mizzou Law School’s newsletter regarding this. Click here to read Mizzou Law’s newsletter.

This case was also featured twice in the Missouri Lawyers Weekly . Click here for the first article titled, “Injury Fund fix headed to Supreme Court” and click here for the second article titled “Supreme Court asked to untangle Injury Fund fix.” (Subscription newspaper may require login)

The Missouri Legislature submitted many changes to workers’ compensation in 2017. This culminated in Senate Bill 66 which was signed by the Governor on 7/5/2017 and became effective on 8/28/2017. Here is what you NEED to know:

IMPORTANT NOTE– If you have a workers’ compensation injury that arose before 8/28/2017 then you should immediately consult with an attorney to determine if the new law applies retroactively to your claim. This depends on whether it is substantive versus a procedural change. As with any new law, the answers are yet to be determined by the courts.

Section 287.020.12:Defines maximum medical improvement (MMI) as the “. . . point at which the injured employee’s medical condition has stabilized and can no longer reasonably improve with additional medical care, as determined within a reasonable degree of medical certainty.”

Comment– This is important in determining Temporary Total Disability (TTD) and Temporary Partial Disability (TPD) and the date at which Permanent Total Disability (PTD) payments begin. TTD/TPD is paid time off work while you are recovering and are unable to work or earning less on light duty. MMI had never been defined by statute till now despite everyone using this term.

Comment– Many believe this amendment was in response to the Greer v. Sysco Food Services, SC94724 (Mo. banc 2015) decision. However, the new amendment does not forgo the situation where a person is released at MMI twice or goes on to get more treatment. Arguably, if you are released twice and/or go on to get more treatment then it would appear your condition was not “stabilized.”

“Any positive test result for a nonprescribed controlled drug or the metabolites of such drug from an employee shall give rise to a rebuttable presumption, which may be rebutted by a preponderance of evidence, that the tested nonprescribed controlled drug was in the employee’s system at the time of the accident or injury and that the injury was sustained in conjunction with the use of the tested nonprescribed controlled drug if:

(a) The initial testing was administered within 24 hours of the accident or injury;

(b) Notice was given to the employee of the test results within 14 calendar days of the insurer or group self-insurer receiving actual notice of the confirmatory test results;

(c) The employee was given an opportunity to perform a second test upon the original sample; and

(d) The initial or any subsequent testing that forms the basis of the presumption was confirmed by mass spectrometry using generally accepted medical or forensic testing procedures.”

Comment– The Employer must first perform steps (a) – (d). In some situations the drug penalty can be very severe and in some cases it can lead to a 50% or 100% forfeiture of all work comp benefits.

Section 287.149.1: TTD/TPD:

TTD or TPD benefits shall be paid throughout the rehabilitative process “until the employee reaches MMI, unless such benefits are terminated by the employee’s return to work or are terminated as otherwise specified in this chapter.”

Section 287.170.5: New penalty for voluntarily leaving your job: (One of the most significant changes in our opinion)

“If an employee voluntarily separates from employment with an employer at a time when the employer had work available for the employee that was in compliance with any medical restriction imposed upon the employee within a reasonable degree of medical certainty as a result of the injury that is the subject of a claim for benefits under this chapter, neither TTD nor TPD benefits available under this section or section 287.180 shall be payable.”

Comment– The statute does not address the situation when doctors have conflicting restrictions. Nor does it define what “voluntarily separates” means.

Section 287.200.1: Changes the statute to say PTD benefits start from date of MMI for the lifetime of the employee.

Section 287.203: Shortens the time in which Hardship Hearings must take place from 60 days to 30 days from the request.

Section 287.240(4)(a)– Adds “any stepchild claimable by the deceased on his or her federal income tax return at the time of injury . . . .” for dependents of a deceased worker for death benefits.

Section 287.243Line of Duty Compensation Act– Many changes to the distribution of benefits to survivors of first responders who were killed in the line of duty.

Section 287.390.7: Settlements:

“In the case of compromise settlements offered after a claimant has reached MMI, upon receipt of a permanent disability rating from the employer’s physician, a claimant shall have a period of 12 months from such date to acquire a rating from a second physician of his or her own choosing.”

“Absent a finding of extenuating circumstances by an ALJ or the commission, if after 12 months a claimant has not acquired a rating from a second physician, any compromise settlement entered into under this section shall be based upon the initial rating.”

“A finding of extenuating circumstances by an ALJ or the commission shall require more than failure of the claimant to timely obtain a rating from a second physician”

“The provision of this subsection may be waived by the employerwith or without stating a cause.”

Comment- Although this new amendment doesn’t say it, you always have the right to go to trial and not be bound by this rule. This rule hurts those workers without a lawyer who don’t know they can get their own doctor’s rating and to go to trial.

Section 287.780:Change in standard for proving an Employer discriminated against you for exercising your work comp rights:

“No employer or agent shall discharge or discriminate against any employee for exercising any of his or her rights under this chapter when the exercising of such rights is the motivating factor in the discharge or discrimination.”

“…motivating factor shall mean that the employee’s exercise of his or her rights under this chapter actually played a role in the discharge or discrimination and had a determinative influence on the discharge or discrimination.”

The Law Firm of Ronald D. Edelman, Attorney along with associates Marshall Edelman and Steven Edelman are handling the case in Missouri which is challenging the constitutionality and interpretation of enhanced permanent partial disability benefits against the Missouri Second Injury Fund. To our knowledge it is the first and only case to do so. We are therefore informing both claimants and practitioners as to the following.

On 1/1/2014, Missouri work comp law section 287.220 was changed. The interpretation and constitutionality of the change is now in dispute. This section of the work comp law has provided benefits since the 1940s from the Second Injury Fund. The Fund is managed by the Missouri State Treasurer.

The Fund was created to pay for injured workers additional benefits for the combinational effects of certain pre-existing injuries and a new work injury. It does not matter whether the pre-existing injury was work related.

The reason why the Fund was created has been clear for nearly three quarters of a century. The courts announced the Fund was created by the Legislature to encourage employers to hire handicapped persons. Federal Mut. Ins. Co. v. Carpenter, 371 S.W.2d 955 (Mo 1963). The focus of the Fund is to compensate for the potential that a “previous injury” would give rise to prospective employer’s incentive to discriminate.Wuebbeling v. West County Drywall, 898 S.W.2d 615,, 620 (Mo. App. E.D. 1995)

The Fund has taken the position that the change of Missouri Work Comp law section 287.220.2(3) eliminated permanent partial disability claims against the Fund after 1/1/2014.

On 8/16/2017, the Labor and Industrial Relations Commission for the Missouri Department of Labor that hears appeals of Workers’ Compensation matters issued an award in Douglas Cosby v. Drake Carpentry Inc. (LIRC 14-003644) denying compensation for a claim against the Fund for permanent partial disability involving a primary injury that occurred after 1/1/2014.

The Commission stated in Cosby that rather than extinguishing any rights or removing any existing remedy, the legislature shifted back to the employer and their insurers any liability that would have otherwise rested with the Second Injury Fund

The Commission stated, “In our view, the 2013 amendments to 287.220 work the effect that employer and their insurers are now liable for any enhanced permanent partial disability that results from the synergistic combination of pre-existing disabilities and primary injuries occurring after January 1, 2014, as the legislature has clearly removed from employers the prior protections of the Second Injury Fund for these kind of synergistic injuries.

The Commission cited the case of Fed. Mut. Ins. Co. v. Carpenter, 371 S.W.2d 955, 957 (Mo. 1963) that states, “”in the absence of an apportionment statute or second injury fund legislation, the employer is liable for the entire disability resulting from a compensable injury.”

Based on the Cosby Commission decision, the EMPLOYER is now responsible for enhanced combinational PPD benefits.

It can also be interpreted that any PTD combinational benefits that used to rest with the Fund but no longer do because of the more rigorous guidelines are now the responsibility of the Employer.

This case is currently on appeal by our office. The Commission decision can be found on their website here.

Happy Eclipse day! Here are some helpful links. Subtract 5 from the UT time to get central time zone. Totality is at 1:18pm at our office.

Please be safe on the roads and at work. We hope no one gets hurt during this event but if you are injured on or off the job during the eclipse you may have a claim. Insurance blogs have already posted about the workers’ compensation health and safety risks of the eclipse on employees.

Many times injured workers are told false information about Missouri Workers’ Compensation. Below, please find some of the top false facts spread about Missouri Work Comp along with their corrections. You can also view our Top Common False Facts chart.

Missouri Workers’Compensation TOP COMMON FALSE FACTS

FALSE- You have no case because you hurt yourself.TRUTH–Fault does not matter. You still have a case.

FALSE- You automatically lose if you don’t report the injury the same day you are hurt.TRUTH–You must give written notice within 30 days. Actual knowledge and verbal notice may be enough.

FALSE- You no longer work for the employer and therefore get nothing.TRUTH–If you left the job you can still file a work comp claim

FALSE- You went to your own doctor so therefore you forfeit all benefits.TRUTH–You may have to pay for that doctor visit but you still can pursue benefits from the employer. In many cases you only find out your injury was work related from your own doctor.

FALSE- You don’t have a case because your employer is out of business.TRUTH–You still have a case. The work comp insurance still covers it. Even if the insurance is bankrupt you can still pursue the Missouri Guarantee Insurance Fund.

FALSE- Employer tells you to submit the work injury bills to your company health insurance plan.TRUTH–Always insist work comp pay. It is at no cost, no copay, & zero deductible to you. Work comp is separate and apart from health insurance

FALSE- Employer tells you they never owe you mileage.TRUTH–Employer shall advance/reimburse transportation when medical appointments are outside metro area where you worked.

On 3/28/2017, Governor Greitens signed HB153 into law making Missouri a Daubert state for qualifying expert witnesses on certain cases only. Link to Bill Text.

Previous Standard: If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.

Daubert Standard: A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) The expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) The testimony is based on sufficient facts or data; (c) The testimony is the product of reliable principles and methods; and (d) The expert has reliably applied the principles and methods to the facts of the case.

The acting director is Tammy Cavender. The director oversees the Division of Employment Security, the Division of Workers’ Compensation, the Division of Labor Standards, the Missouri Commission on Human Rights, and the State Board of Mediation.

This is the first Court of Appeals case to interpret Senate Bill 1 since it came into effect on 1/1/2014. Senate Bill 1 created, among other things, a new Section 287.220.3 in Missouri Workers’ Compensation. This case harmonizes sections 287.220.2 and 287.220.3 of the MO Work Comp law.

Mr. Gattenby was injured at work in 2014 and also had several pre-existing injuries that all occurred before 2014. Mr. Gattenby alleged he was permanently and totally disabled due to the combination of his injuries against the Second Injury Fund. The argument was over whether 287.220.2 or 287.220.3 applied.

The Court explained that 287.220.3 applied only where both the preexisting and the primary injuries occur after January 1, 2014. In support of its analysis, the Court stated, 287.220.2 plainly refers to “previous disability,” whereas 287.220.3 does not.

Because Mr. Gattenby’s claim against the SIF involved pre-existing injuries that resulted in disability before 1/1/2014, subsection 287.220.2 is controlling.

This opinion is very important because up till this point the Second Injury Fund maintained the position that all new cases with a primary work injury occurring after 1/1/2014 was controlled under the “new law” and standards of Section 287.220.3.

This case further bolsters statutory interpretation for Fund responsibility for PPD cases under 287.220.2 where the primary injury is after 1/1/2014 and the pre-existing injury is before 1/1/2014.

If you have been injured on the job, make sure you provide a written report of injury immediately to your Employer. Be sure to demand medical treatment in writing.

Remember- A written report of injury is not the same as filing a Claim for Compensation. You must still file a Claim for Compensation within the statute of limitations. If you file a Claim for Compensation after the statute of limitations then you will receive nothing.

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